Extradition

Q: What is Extradition?

A:

As defined by Hon’ble Supreme Court of India, ‘Extradition is the delivery on the part of one State to another of those whom it is desired to deal with for crimes of which they have been accused or convicted and are justifiable in the Courts of the other
State’. An Extradition request for an accused can be initiated in the case of under-investigation, under-trial and convicted criminals. In cases under investigation, abundant precautions have to be exercised by the law enforcement agency to ensure that it
is in possession of prima facie evidence to sustain the allegation before the Courts of Law in the Foreign State.

Q: What is the Legislative Basis for Extradition in India?

A:

The Extradition Act 1962 provides India’s legislative basis for extradition. To consolidate and amend the law relating to the extradition of fugitive criminals and to provide for matters connected therewith, or incidental thereto, the Extradition Act of
1962 was enacted. It consolidated the law relating to the extradition of criminal fugitive from India to foreign states. The Indian Extradition Act, 1962 was substantially modified in 1993 by Act 66 of 1993.

Q: What are Extradition Treaties?

A:

Section 2(d) of Extradition Act 1962 defines an ‘Extradition Treaty’ as a Treaty, Agreement or Arrangement made by India with a Foreign State, relating to the Extradition of fugitive criminals and includes any treaty, agreement or arrangement relating to
the Extradition of fugitive criminals made before the 15th day of August 1947, which extends to and is binding on, India. Extradition treaties are traditionally bilateral in character. Yet most of them seem to embody at least five principles, as endorsed by
many judicial pronouncements and state practice in respect of domestic extradition legislation

First, the principle of extraditable offences lays down that extradition applies only with respect to offences clearly stipulated as such in the treaty;

Second, the principle of dual criminality requires that the offence for which the extradition is sought be an offence under the national laws of the extradition requesting country as well as of the requested country;

Third, the requested country must be satisfied that there is a prima facie casemade out against the offender/accused;

Fourth, the extradited person must be proceeded against only against the offence (rule of speciality) for which his extradition was requested; and

Finally, he must be accorded a fair trial (this is of course part of international human rights law now). Judiciary and other legal authorities are likely to apply these principles equally to situations where no extradition treaty exists.

Q: Who is the nodal authority for Extradition in India?

A:

CPV Division, Ministry of External Affairs, Government of India is the Central/Nodal Authority that administers the Extradition Act and it processes incoming and outgoing Extradition Requests.

Q: Who can make an extradition request from India’s side?

A:

Requests for extradition on behalf of the Republic of India can only be made by the Ministry of External Affairs, Government of India, which formally submits the request for Extradition to the requested State through diplomatic channels. Extradition is not
available at the request of members of the public.

Q: Which countries can India make an extradition request to?

A:

India is able to make an extradition request to any country. India’s treaty partners have obligations to consider India’s requests. In the absence of a treaty, it is a matter for the foreign country, in accordance with its domestic laws and procedures, to
determine whether the country can agree to India’s extradition request on the basis of assurance of reciprocity. Similarly, any country can make an extradition request to India. Extradition is possible from the non-Treaty States as Section 3(4) of the Indian
Extradition Act, 1962 provides for the process of extradition with non-Treaty foreign States.

Q: What is a provisional arrest request?

A:

In case of urgency, India may request the provisional arrest of the fugitive, pending presentation of an extradition request. A provisional arrest request may be appropriate when it is believed that the fugitive may flee the jurisdiction.

Q: How is a request for Provisional Arrest transmitted to the requested country?

A:

A request for provisional arrest may be transmitted through diplomatic channels through CPV Division of Ministry of External Affairs. The facilities of International Criminal Police Organization (ICPO- INTERPOL) may also be used to transmit such a request
through National Central Bureau of India, CBI, New Delhi.

Q: What are the requirements for India making a provisional arrest request to a foreign country?

A:

Each extradition treaty specifies the documents required for a provisional arrest request and specify the means by which a provisional arrest request must be made. The Police/Law Enforcement Agency concerned in India, prepares the request for a provisional
arrest and sends it to the MEA, which in turn forwards the same to the concerned authority of the foreign country through diplomatic channels.

Q: What documentation is necessary for seeking provisional arrest of the fugitive in a foreign State?

A:

Generally, the following documents must be included in a provisional arrest request to be sent to a foreign country:

A statement of why the request is urgent.

a physical description of the person, including his/her nationality, his/her photograph and his/her fingerprints, if available, a list of the offences for which the person’s arrest is sought;

the location of the person sought, if known;

a brief statement of the facts of the case, including, if possible, the time and location of the offence;

a brief description of the offences committed by the fugitive and availability of prima facie evidence against him;

A prima facie case "means at first blush or at first sight, a complete case against the accused ... in order to prove a prima facie case, there must be evidence direct or circumstantial on each element."

a copy of the legal provision(s) setting out the offence(s) and the penalty for the offence(s);

a statement of the existence of a warrant of arrest or a finding of guilt or judgment of conviction against the person sought; a copy of the warrant issued by the Court of law in India for the person’s arrest may have to be enclosed; and

astatement that if the person is provisionally arrested, India will seek the person’s extradition within the period required by that country’s law.

Q: Does India need a treaty with a foreign country to make a provisional arrest request?

A:

No. India does not need a treaty to make a provisional arrest request to a foreign country. India can make a provisional arrest request to any country. India’s treaty partners have obligations to consider India’s requests. In the absence of a treaty, it
is a matter for the foreign country in accordance with its domestic laws to determine whether to arrest the person according to India’s provisional arrest request.

Q: What are the requirements for India to accept a provisional arrest request from a foreign country?

A:

India can accept a provisional arrest request from any foreign State. On receipt of an urgent request from a foreign State for the immediate arrest of a fugitive criminal, the Central Government may request the Magistrate having competent jurisdiction to
issue a provisional warrant for the arrest of such fugitive criminal. Section 34B of the Extradition Act provides for Provisional arrest. Before issuing a warrant for the arrest of a person, a magistrate must be satisfied that:

an arrest warrant for the person exists in the foreign country or the person has been convicted of an offence against the law of the foreign country

the offence to which the warrant or conviction relate is an ‘extradition offence’, and

The dual criminality principle is complied with.

The extradition arrest warrant issued by the magistrate is executed by the concerned Indian Police agency.

After the person is arrested, he is brought before a magistrate and remanded in custody or released on bail if there are special circumstances that justify the grant of bail. The foreign country which made the provisional arrest request has a limited time
to make a formal extradition request to India, which is, usually 45 or 60 days from the day on which the person was arrested.

The exact time frame finds mention in the relevant extradition treaty. For non-treaty States, it is 60 days as per Section 34B(2) of the Indian Extradition Act. If an extradition request is not received within that time, the person can apply to a magistrate
to be released from custody. However, the fact that the person has been released from custody shall not prejudice the subsequent re-arrest and extradition of that person, if the extradition request and supporting documents are received at a later date.

It is evident that Section 34 Sub-section (1) is an urgency provision for the purpose of putting a fugitive criminal under provisional arrest, pending receipt of a request for his surrender or return, so that he does not flee in the meanwhile. The mandatory
stipulation of discharge of the person detained upon the expiry of 60 days from the date of his arrest is a safeguard against keeping the liberty of a person in suspended animation for an indefinite period without any accusation or complaint etc.

It is clear that the Section does not postulate that a request for surrender or return of a fugitive criminal has to be only after fugitive's provisional arrest. In other words, provisional arrest of a fugitive under Sub-section (1) is not a condition precedent
for a request for his surrender to the requesting country.

It is equally not mandatory that a request for immediate arrest under Sub-section (1) must precede a requisition for surrender of a fugitive criminal either under Chapter II, which lays down the procedure for extradition of fugitive criminals to foreign
State, with which there is no extradition arrangements or Chapter III of the Act, which sets out the procedure for return of fugitives to foreign States with extradition arrangements.

Q: How may the Extradition process be triggered against an Indian national living in India?

A:

Extradition is triggered by a request submitted through diplomatic channels by a foreign country. In India, it proceeds through Ministry of External Affairs and may be presented to an Extradition magistrate to order to determine whether the request is in
compliance with an applicable treaty, whether it provides sufficient evidence to believe that the fugitive committed the identified offense(s), and whether other treaty requirements have been met. If so, the magistrate certifies the case for extradition at
the discretion of the External Affairs Minister. Except as provided by treaty, the magistrate does not inquire into the nature of foreign proceedings likely to follow extradition.

Q: How are the facts established in an extradition case?

A:

Extradition cases are decided on the basis of the conduct alleged against the defendant. Reasonable grounds for suspicion have to be established for which prima facie determination of committal of an offence is made. The court deciding on extradition is
not supposed to conduct a mini-trial to decide whether the allegations are justified. That is the mandate of the trial court in the requesting country.

Q: What are the bars to Extradition?

A:

An alleged offender may not be extradited to the requesting state in the following cases:

No treaty – In absence of a treaty, States are not obligated to extradite aliens/nationals

No treaty crime – Extradition is generally limited to crimes identified in the treaty which may vary in relation to one State from another, as provided by the treaty.

Military and Political Offences – Extradition may be denied for purely military and political offences. Terrorist offences and violent crimes are excluded from the definition of political offences for the purposes of extradition treaties.

Want of Dual Criminality – Dual criminality exists when conduct constituting the offence amounts to a criminal offence in both India and the foreign country.

Procedural considerations – Extradition may be denied when due procedure as required by the Extradition Act of 1962 is not followed.

Q: Are Indian Nationals extradited to Gulf/West Asian countries?

A:

Indian nationals who return to India after committing offences in West Asia/Gulf countries are not extradited to those countries. They are liable to be prosecuted in India in accordance with Indian Law, as bilateral treaties with these countries preclude
(except Oman) extradition of own nationals.

Q: Can the decision to be extradited be appealed against by the alleged offender?

A:

The decision of the Extradition Magistrate is submitted to the Government of India, which finally decides if an alleged offender shall be extradited. The decision of the Government of India can be appealed against in a higher court.

Q: If a fugitive Criminal is found in India, what is the procedure to obtain a warrant of arrest?

A:

Where it appears to any magistrate that a person within the local limits of his jurisdiction is a fugitive criminal of a foreign State he may, if he thinks fit, issue a warrant for the arrest of that person on such information and on such evidence as would,
in his opinion, justify the issue of a warrant if the offence of which the person is accused or has been convicted had been committed within the local limits of his jurisdiction.

The magistrate shall forthwith report the issue of a warrant to the Central Government and shall forward the information and the evidence or certified copies thereof to that Government.

A person arrested on a warrant issued shall not be detained for more than three months unless within that period the magistrate receives from the Central Government an order made with reference to such person under Section 5.

Q: What is the difference between the Procedure of Extradition for Chapter II and Chapter III Countries?

A:

The extradition procedure of a fugitive offender under Chapter II of the Act is rigorous with all the safeguards built into it. The Extradition Magistrate may expend considerable effort on proof of guilt before a fugitive criminal is surrendered. He has
to be satisfied by evidence that there is a prima facie case against the offender.

The return of a fugitive criminal under Chapter III is extremely informal and swift. One of the main differences lies in the matter of proof of guilt. The need for prima facie evidence having been dispensed with, all that is required is, the satisfaction
of the Extradition Magistrate about the authenticity of the endorsed warrant and as to the offence charged being an extradition offence. Chapter III of the Act does not speak of inquiry in any other aspect of the issue. So there is a substantial and material
difference in the procedures of surrendering a fugitive criminal prescribed by the two chapters namely II and III of the Extradition Act.

Q: Does India extradite its own Nationals?

A:

India adheres to the principle of extraditing its own nationals. The memorandum on "Extradition” submitted by the Government of India to the Asian-African Legal Consultative Committee at its Third Session (Colombo, 1960), leaves no doubt on this matter.
However, in practice, India follows dual system, by extraditing nationals on the basis of reciprocity. If the other treaty State does not extradite, India also bars extradition of own nationals. The following table lists the countries to which extradition
of Indian Nationals is barred by the bilateral Extradition Treaty.